951 F.

2d 432

UNITED STATES of America, Appellee,

v.
Cesar Augusto CETINA-GOMEZ, Defendant, Appellant.
No. 91-1216.

United States Court of Appeals,

First Circuit.
Heard Nov. 6, 1991.
Decided Dec. 17, 1991.

Norberto Colon, by Appointment of the Court, for defendant, appellant.

Warren Vazquez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo,
U.S. Atty., was on brief for appellee.
Before LEVIN H. CAMPBELL, Circuit Judge, BOWNES, Senior Circuit
Judge, and TORRUELLA, Circuit Judge.
LEVIN H. CAMPBELL, Circuit Judge.

I.

Defendant, Cesar-Augusto Cetina Gomez, appeals from his sentence pursuant

to a conviction in the United States District Court for the district of Puerto
Rico, for (1) knowingly and intentionally possessing cocaine with intent to
distribute, in violation of 21 U.S.C. 841(a)(1); (2) importing cocaine into the
United States, in violation of 21 U.S.C. 952(a); and (3) possessing cocaine on
board an aircraft arriving in the United States without entering it into the supply
list or cargo manifest of the aircraft, in violation of 21 U.S.C. 955. A jury
found defendant guilty on all counts. The district judge sentenced him to
concurrent terms of imprisonment of 78 months for each count and concurrent
terms of supervised release of four years on each count. A special monetary
assessment of fifty dollars for each count was also imposed. Defendant argues
on appeal that the district court erred by including the full amount of cocaine
charged in the indictment in its sentencing calculation. We affirm the sentence.

On September 29, 1990, defendant arrived in Puerto Rico on an Iberia Airlines

flight originating in Quito, Ecuador en route to Madrid, Spain. During a routine
inspection, a customs agent noticed a strong chemical odor emanating from a
suitcase in one of the luggage containers. Upon further inspection, 4,054 grams
of cocaine were found in the walls of the suitcase. Another 165.1 grams of
cocaine were found contained in an aerosol can within the suitcase. The
suitcase was identified as defendant's by a claim tag and defendant was
arrested.

At trial defendant testified that the purpose of his trip to Spain was to carry--for
a friend--what he thought was 200 grams of cocaine contained in the aerosol
can. He claimed that this friend lent him the suitcase and that he was unaware
that the walls of the suitcase contained additional cocaine. The district court
properly instructed the jury that to sustain a guilty verdict the evidence need not
establish that the amount of cocaine was the same as alleged in the indictment,
or that the defendant knew the precise amount of the cocaine he was
transporting. The jury found defendant guilty on all three counts of the
indictment.

At the sentencing hearing, despite defendant's trial testimony that he only had
knowledge of the cocaine in the aerosol can, the court determined that the total
amount of cocaine found in defendant's possession should be applied in
calculating his sentence.1 Under the United States Sentencing Guidelines-based on a total amount of 4,291 grams of cocaine and a criminal history
category of I--the court determined a base offense level of 30. United States
Sentencing Commission, Guidelines Manual, 2D1.1(c)(7) (Nov.1990). The
court also granted defendant a two point reduction for acceptance of
responsibility, arriving at a final base offense level of 28. This appeal followed.

II.
5

Defendant appeals from his sentence, arguing that he only intended to carry 200
grams of cocaine in an aerosol can and no more. He maintains that he was
unaware of the 4,054 grams of cocaine found in the walls of the suitcase he was
carrying, and that it was error for the judge to determine, for sentencing
purposes, that defendant's base offense level was 30 based on that amount.
Instead, he contends that his base offense level should have been 18, U.S.S.G.
2D1.1(c)(13), based on possession of 165.1 grams of cocaine found in the
aerosol can. We disagree.

Contrary to the government's contention, we have jurisdiction to review

whether defendant's sentence was "imposed in violation of law." 18 U.S.C.

3742(a).2 Our standard of review, however, is limited. This court must "give
due regard to the opportunity of the district court to judge the credibility of the
witnesses, and shall accept the findings of fact of the district court unless they
are clearly erroneous...." 18 U.S.C. 3742(e); see also United States v. Pilgrim
Market Corp., 944 F.2d 14 (1st Cir.1991).
7

Looking at all the evidence presented, the district court concluded that
defendant had known about all the cocaine found within his possession when
apprehended, and sentenced him accordingly. The court rejected defendant's
testimony denying knowledge of the cocaine in the walls of his suitcase. See
supra note 1. As we have said in numerous cases, "assessing the credibility of
witnesses is solely the province of the trier of fact." United States v. Green, 887
F.2d 25, 28 (1st Cir.1989) (citation omitted); see also United States v. Patrone,
948 F.2d 813, 816 (1st Cir.1991); United States v. Bouthot, 878 F.2d 1506,
1514 n. 8 (1st Cir.1989); United States v. Hyson, 721 F.2d 856, 864 (1st
Cir.1983). The district court was also permitted to draw reasonable inferences
from the uncontested facts of the case, i.e., the contents of the suitcase when
seized, the odor and location of the cocaine, the circumstances of the seizure,
etc. Where there is "more than one reasonable inference [that] may be drawn
from undisputed facts, the court's choice from among supportable alternatives
cannot be clearly erroneous." United States v. Rosado-Sierra, 938 F.2d 1, 2 (1st
Cir.1991); see also United States v. Estrada-Molina, 931 F.2d 964, 966 (1st
Cir.1991); United States v. Bradley, 917 F.2d 601, 606 (1st Cir.1990). We
think it was permissible to infer from the facts here that defendant knew what
was in the suitcase he was carrying. Accordingly, having also had the
opportunity to see and hear defendant, and having determined that defendant's
contrary explanation was not credible, the court had ample basis to find that
defendant was aware of all the cocaine he was transporting--not just that in the
aerosol can.

Defendant argues that the Supreme Court's decision in Morissette v. United

States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952) supports his claim that
his purported ignorance of the cocaine in the suitcase must be taken into
account for purposes of determining his base offense level under the Sentencing
Guidelines. In Morissette, the Supreme Court held that the omission from a
statute of any mention of criminal intent does not dispense with intent as a
required element of the offense--absent legislative history to the contrary.
Morissette, however, dealt with the essentials of proving guilt, not with a court's
exercise of its sentencing powers. To be sure, an accused's sentence for
possession, importation or distribution of drugs may only be calculated on the
basis of those drugs with which it is shown the accused had a sufficient

connection. But his connection need not be the same in all respects as is
required to establish criminal guilt nor need the relevant facts be proven under
the criminal standard of proof "beyond a reasonable doubt."
9

For sentencing, the government need prove relevant facts only by a

preponderance of the evidence. United States v. Rodriguez-Cardona, 924 F.2d
1148, 1155 (1st Cir.1991); United States v. Blanco, 888 F.2d 907, 909 (1st Cir.)
cert. denied --- U.S. ----, 112 S.Ct. 54, 116 L.Ed.2d 31 (1989); see also U.S.S.G.
6A1.3 (at sentencing "the court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its
probable accuracy."). The sentencing court in this case included the full amount
of cocaine charged in the indictment in defendant's sentence because it
permissibly concluded, from the evidence at trial, that defendant had
knowledge of, and intended to distribute, all of the drugs in his possession. The
record here permitted the district court to make such a finding by a
preponderance of the evidence, at least, and this finding was not clearly
erroneous.

10

Affirmed.

At the sentencing hearing, after hearing defendant's objections to using the full
amount of cocaine found in the suitcase to calculate defendant's sentence, the
judge stated:
My view of the evidence in this case was that your client knew about all the
cocaine. And the acceptance of part of the cocaine, quote unquote, acceptance,
was simply with the purpose of trying to obtain a lower sentence, and that is all.
The full amount of cocaine is going to be imputed to him and there is no
acceptance of criminal responsibility as defined in the guidelines of this case.

Citing United States v. Vega-Encarnacion, 914 F.2d 20 (1st Cir.), cert. denied, -- U.S. ----, 111 S.Ct. 1626, 113 L.Ed.2d 723 (1991), the government argues
that this court lacks jurisdiction to consider a sentence that is within an
applicable guideline range that is correctly determined. While this is true, the
principle is not applicable in this case. Defendant here argues that the sentence
was imposed in violation of law since it was based on an amount of cocaine of
which he denies all knowledge and responsibility. Consequently, defendant
contends that the applicable guideline range was incorrectly determined. This
court has jurisdiction to review such claims. 18 U.S.C. 3742(a)